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Written Request to Vacate the RPO

If a Risk Protection Order was granted against you, then you have the right to submit one written request for a hearing to vacate a risk protection order. Your right to submit the request to vacate the RPO starts on the date the order was issued. If the RPO is extended beyond the one year, then you have a chance to fight the extension. Each time an extension is granted, then you have another opportunity to file a motion to vacate the RPO.

As a practical matter, your best chance of getting rid of the RPO is during the initial hearing or during any contested extension hearing. During those hearings, the petitioner has the burden to prove the case beyond the clear and convincing standard of proof. The problem with the motion to vacate is that the burden of proof shifts to the respondent during the hearing.

After the court receives the request for a hearing to vacate a risk protection order, the court is required to set a date for a hearing. The notice of the request must be served on the petitioner. The petitioner in these actions is a law enforcement officer or law enforcement agency that originally filed the petition.

The hearing on your request to vacate the RPO must occur no sooner than 14 days and no later than 30 days after the date of service of the request upon the petitioner.

Attorneys for Vacating the RPO in Florida

The attorneys at Sammis Law Firm help clients served with a petition for a risk protection order in Florida. We also help clients file a motion to vacate the risk protection order or any extension of the RPO if it has already been granted.

With our main office in downtown Tampa and a second office in New Port Richey, we fight protective order cases throughout the greater Tampa Bay area.

Our attorneys are experienced in representing clients in protective order hearing throughout the greater Tampa Bay area. We have offices conveniently located in downtown Tampa and in New Port Richey. We fight these cases throughout Hillsborough County, Pasco County, Hernando County, Pinellas County and Polk County, Florida.

Call 813-250-0500 to discuss your case.


Procedures for the Hearing on the Motion to Vacate the RPO

At the return hearing on the motion to vacate the RPO, the respondent has the burden of proving by clear and convincing evidence that the respondent does not pose a significant danger of causing personal injury to himself or herself or others by having in his or her custody or control, purchasing, possessing, or receiving a firearm or ammunition.

The court may consider any relevant evidence when making this determination. If the court finds after the hearing that the respondent has met his or her burden of proof, the court must vacate the order.

The law enforcement agency holding any firearm or ammunition or license to carry a concealed weapon or firearm that has been surrendered pursuant to this section shall be notified of the court order to vacate the risk protection order.


Consequences of Getting the RPO Vacated

If a risk protection order is vacated before its end date, the clerk of the court shall, on the day of the order to vacate, forward a copy of the order to the Department of Agriculture and Consumer Services and the appropriate law enforcement agency specified in the order to vacate.

Upon receipt of the order, the law enforcement agency shall promptly remove the order from any computer-based system in which it was entered including the Florida Crime Information Center (FCIC) and National Crime Information Center (NCIC).


The Form to Vacate the Risk Protection Order

The form for the Motion to Vacate a Risk Protection Order can be used after a RPO was entered against you pursuant to section 790.401(3), Florida Statutes, or the RPO order has been extended pursuant to section 790.401(6), F.S.

You are permitted to file this motion one time after the RPO is granted and you are permitted to request a hearing on the motion. You can file a second request to vacate one time after each extension fo the RPO, if any.

If you have previously filed a written request to vacate the order, then you are not permitted to file the request to vacate or be heard a second time. If you have a risk protection order against you extended, then you get one opportunity to file a written request to vacate that extension.

The court will deny your request for a hearing to vacate a risk protection order or extension if you have previously requested a hearing to vacate this Order or your Request for a Hearing to Vacate does not comply with s. 790.401(6), F.S. If the court denies your request, you may not request another hearing to vacate unless the order in effect is extended.


IN THE CIRCUIT COURT OF THE __________ JUDICIAL CIRCUIT,

IN AND FOR                      COUNTY, FLORIDA

Case No.:                             

Division:                                

                                   ____________,

                                    Petitioner, 

and

                                    _____________,

                                    Respondent.

MOTION TO VACATE A RISK PROTECTION ORDER

I, {full legal name}                                                                  , being sworn, certify that the following statements are true:

SECTION I. 

  1. I am the Respondent in this case.
  1. I currently live at the following address: {street address}{city, state, and zip code}                 

Telephone Number: {area code and number}                                                                       

  1. My attorney's name, address and telephone number is:                                       .

(If you do not have an attorney, write "none.")

SECTION II.  REQUEST TO VACATE

  1. This is a request to vacate a: {Indicate only one}

            ______ Risk Protection Order entered {date}_____________________ by

            {court entering order} ___________________________________________________________

            _____ Extension of a Risk Protection Order entered {date} ____________________ by

            {court entering extension} ________________________________________________________

  1. I _____ have ______ have not previously requested a hearing to vacate a _______Risk Protection Order or ________ Extension of Risk Protection Order. What is the date of your most recent request to vacate either an order or extension? {date} ____________________________
  1. I no longer pose a significant danger of causing personal injury to myself or to others by having firearms and/or ammunition in my custody or control, or by purchasing, possessing, or receiving a firearm or ammunition.
  1. I ____ have ____ have not committed or threatened violence against myself or others—whether or not such act or threat involved a firearm since issuance of the order or extension.
  1. I ____ have ____ have not had mental health issues since the order or extension was issued. Describe any mental health issues with specificity and whether you were hospitalized or put on medication as a result of such issues:______________________________________________________________________          
  1. An _____injunction for protection or _____ no-contact order _____has _____ has not been entered against me. This order was entered {date} ______________________________ by {name of court entering order} ________________________________________________.
  1. I _____ have ____ have not violated the injunction for protection or no-contact order.
  1. I _____ have _____ have not been convicted or, had adjudication withheld, or pled nolo contendere to a crime that constitutes domestic violence as defined in s. 741.28, F.S., in Florida or another state. If yes, please provide {date} __________________ on which such action took place and {court}
  1. I _____ have _____ have not been convicted or, had adjudication withheld, or pled nolo contendere to a crime involving violence or a threat of violence in Florida or another state. If yes, please provide {date} __________________ on which such action took place and {court}
  1. I _____ have _____ have not used physical force or stalked another person. If yes, describe the circumstances: _________________________.
  1. I _____ have _____ have not used or threatened to use a weapon against myself or others. If yes, describe the circumstances: _____________________________________________.
  1. I ____ have _____ have not recklessly used, displayed, or brandished a firearm. If yes, describe the circumstances:_________________________________________________.
  1. I ____ have _____ have not abused alcohol or a controlled substance. If yes, describe the circumstances: ____________________________________________________________.
  1. I have not possessed a firearm or ammunition since any firearms or ammunition of mine was surrendered pursuant to the court’s order. 

SECTION III.  REQUEST FOR RELIEF

  1. I understand that the court will hold a hearing on this motion and that I must appear at the hearing.
  1. I ask the court to vacate the Risk Protection Order or the Extension of a Risk Protection Order entered in this case.

I understand that I am swearing or affirming under oath to the truthfulness of the factual claims made in this motion and that the punishment for knowingly making a false statement includes fines and/or imprisonment.                                

Dated:                                                              ____________________________________________

                                                                        Signature of Respondent

STATE OF FLORIDA

COUNTY OF ______________                                         

Sworn to or affirmed and signed before me on                                by                                              .

 

                                                                                   

NOTARY PUBLIC or DEPUTY CLERK 

                                                                                   

{Print, type, or stamp commissioned name of notary or clerk}

       __ Personally known

       __ Produced identification

              Type of identification produced                                             


This article was last updated on Friday, July 20, 2018.

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